New South Wales Court of Criminal Appeal CITATION: Rampley v R [2010] NSWCCA 293 HEARING DATE(S): 24 September 2010 JUDGMENT DATE: 9 December 2010 JUDGMENT OF: McClellan CJatCL at 1; Latham J at 40; Price J at 41 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL LAW - where criminality was of a very serious nature - where offender had a prominent mitigating case - whether the sentence was manifestly excessive - consideration of similar cases dealing with sexual activity offences - discussion of the purpose of the offence of using a carriage service to groom a person under 16 years of age - sentence within range and not manifestly excessive LEGISLATION CITED: Criminal Code 1995 CATEGORY: Principal judgment Burden [2005] QCA and Hays [2006] QCA Campbell [2004] QCA 342 DPP (Cth) v Hizhnikov [2008] VSCA 269 (Court of Appeal) R v Bozinovski (NSWDC 4 June 2009 unreported) R v Budd NSWDC, 2 October 2007 R v El Karhani (1990) 21 NSWLR 370 R v Gajjar [2008] VSCA 266 R v Holmes NSWDC CASES CITED : R v Kennings [2004] QCA 162 R v Lindsay (NSWDC 16 December 2009 unreported) R v O'Shana (ACTSC 1 August 2008, unreported) R v Paull (1990) 20 NSWLR 427 R v Porta NSWDC, 23 October 2007 R v Poynder [2007] NSWCCA 157 R v Shepheard [2008] ACTSC 116 R v Singh (NSWDC 19 May 2009 unreported) Tector [2008] NSWCCA 151 Western Australia v Collier (2007) 178 A Crim R 310 PARTIES: Warwick Martin Rampley (applicant) The Crown FILE NUMBER(S): CCA 2009/2799 COUNSEL: M Picken (applicant) P Mcguire (Crown) SOLICITORS: Australian Criminal Law Specialists Pty Ltd (applicant) Commonwealth Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 22/05/2009 LOWER COURT JUDICIAL OFFICER: Solomon DCJ LOWER COURT DATE OF DECISION: 2 October 2009 IN THE COURT OF CRIMINAL APPEAL 2009/2799 McCLELLAN CJ at CL LATHAM J PRICE J THURSDAY 9 DECEMBER 2010 RAMPLEY Warwick Martin v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty in the Local Court to one charge contrary to s 474.27(1) of the Criminal Code 1995 being: "Between 19 June 2007 and 4 October 2007 at Thornleigh, New South Wales, used a carriage service to transmit a communication to another person, namely a fictitious recipient and the communication contained material that was indecent, with the intention of making it easier to procure the recipient to engage in sexual activity with himself and the recipient was someone he believed to be under 16 years of age." 2 The maximum penalty for the offence is imprisonment for 12 years. The applicant was sentenced in the District Court to imprisonment for a term of 2 years and 9 months and ordered to be released under a recognisance release order after serving a period of 1 year and 6 months. The sentencing judge allowed a 25% reduction in the sentence because of the early plea of guilty. He seeks leave to appeal against the severity of the sentence. 3 The relevant facts were agreed between the applicant and the prosecution and were recorded by the sentencing judge. They were as follows: "Between Thursday 19 June 2007 and Thursday 4 October 2007 online communications via the Internet took place between the accused, Warwick Martin Rampley, and an investigator from the Cyber Predator Team, Western Australian Police. These communications took place in the mIRC Windows Live Messenger. MIRC is a client server test-based application that utilises the internet as a gateway in order to allow persons to enter topic related chat rooms and engage in chat with other persons in real time. Windows Live Messenger is a client server text and multi media based application that utilises the Internet as a gateway in order to allow communication between authenticated users and engage in chat with other persons in real time. Throughout these conversations the investigator was using the assumed online identity of a 12 year old female named Jessica Johnson of East Victoria Park, Western Australia. The assumed identity user name 'justjees' in mIRC and 'just_jess_95; in Windows Live Messenger (MSN). Attached to the Windows Live Messenger of the assumed identity was an email address 'justjess95@hotmail.com'. The offender was using the online name of Woz and CaptJackSparrow and email addresses 'wrampley@optus.net.com.au' or 'woz.not@notmail.com'. During the online communications the accused was sexually explicit with the assumed identity, grooming 'her for' sexual activity with him. The accused was made aware on several occasions that the assumed identity was a 12 year old girl; additionally he was provided with a picture of the assumed identity that was clearly corroborative of this profile. Between 7.20 pm and 8.14 pm on 17 July 2007 the accused engaged in online communications via the internet with an investigator from the Cyber Predator Team, Western Australian Police. Throughout this communication the investigator was using the assumed online identity of a 12 year old girl. During the communication the accused engaged this assumed online identity in conversation of a sexually explicit nature, namely the accused instructed the assumed identity how to masturbate. The accused asked 'have you ever touched yourself? Like in a sexual way?' The accused then instructed the assumed identity how to masturbate stating 'So spread your legs a little and slide a hand into your pants between your legs. You want to start gently at first. Slide a finger in between your pussy lips and slide it gently up and down … see how good it feels in your slit. You might feel it's getting a bit moist which is good.' The accused further goes on to say 'Towards the front of your slit you may feel a small pea sized lump … if you do concentrate a little on that circling it with the tip of your finger, put a little pressure on it as you massage it. What you can also do is slide your finger further down and run your finger down further and run your finger along the lump. Like instead of just using the tip of your finger on the lump to slide your finger down your slit and keep it in contact with the lump'. The accused further instructs, 'If you feel lower than the lump you feel the opening, you can try pushing your fingers inside yourself and sliding it in and out … see if you like that'. The accused continues with the conversation explaining the term 'orgasm' to the assumed identity and suggests the way in which 'she' can make herself orgasm. Between 7.25 pm and 7.59 pm on 30 August 2007 the accused engaged in online communication via the Internet with an investigator with the Cyber Predator Team, Western Australian Police. Throughout this communication the investigator was using the assumed online identity of a 12 year old girl. During the communication the accused engaged the assumed online identity in conversation of a sexually explicit nature, namely, the accused asked the assumed identity if 'she' would meet up with him and if they met up he would 'maybe just try to have sex with you'. The accused makes reference to the communication of 17 July 2007. 'Did we talk about you putting your hand down there last time? Did you do it? Did you do it later in bed as well? Have you done it at all since?' Between 5.51 pm and 7.17 pm on 3 September 2007 the accused engaged in an online communication via the Internet with an investigator from the Cyber Predator Team, Western Australian Police. Throughout this communication the investigator was using the assumed online identity of a 12 year old girl. During the communication the accused engaged the assumed online identity in conversation of a sexually explicit nature, namely, the accused instructed the assumed identity how to masturbate, clearly knowing that 'she's' a 12 year old girl. He states, 'No, no, I'm a dirty pervert. LOL. You are 12 and I am 33.' The accused states, 'Sex is lots of fun, he he, that's why I want to touch yourself down there and you could have an orgasm similar to when you have sex 'feels great'. The accused goes on to explain what an orgasm is, 'hard to explain, when you have one your body will tense right up then release suddenly and then you go tingly, sometimes you can feel it go through you in waves of tension and then release, can feel amazing. You have to trust me and try it because it will be your first time and it will take a little while to find out what feels best.' The accused continues to instruct the assumed identity. 'You should take off your nickers so you can be norty. Now I'm thinking to make it easier for you we should try some lubricant the first time … do you have some moisturiser. So what I want you to do is to put some on your finger and then put your finger between your legs and tuck inside your slit towards the front, feel for a little bump. The lube should make it feel nice. So run your finger around and circle on the bump … you may try by using two fingers and you might also try rubbing back and forth instead. Try rubbing harder and lighter to see if that feels between when you're rubbing.' The accused continues to ask the assumed identity 'are you feeling warmer? Or your breathing getting heavier? Are you rubbing the small bump inside your slit. I want you to try and put one of your fingers inside you, feel a bit lower down and you'll find your hole then slide a finger in it, push it in as far as you like and try sliding it out.' Between 10.44 pm and 11.11 pm on 15 September 2007 the accused engaged in an online communication via the internet with an investigator from the Cyber Predator Team, Western Australian Police. Throughout this communication the investigator was using the assumed online identity of a twelve year old girl. During the communication the accused tells the assumed online identity that he is 'watching a girl have sex'. The POI 'Woz' exposed 'Jess' to a pornographic video through a link, which he sent by MSN Windows Live Messenger. He tells 'her' to 'have a quick look at the beginning where she's giving the guy head, see if you like it'. The video was posted on website 'YouPorn' and depicted a topless adult female performing fellatio on a fully naked adult male and then later showed the male having sexual intercourse with the same female. About 7.30 am on Wednesday 3 September 2008, a search warrant was executed at 21 Gilgandra Avenue Thornleigh. The accused was arrested by officers of the Child Exploitation Internet Unit and taken to Hornsby Police Station where he was entered into custody and explained his rights under Part 9 LEPRA. The accused participated in an electronically recorded interview, during which he stated he used internet programmes mIRC and Windows Life Messenger (MSN) to chat with people online. The accused made admissions to him being the person involved in the online communication during which he groomed the assumed online identity of a twelve year old girl. The accused was then charged." 4 At the time of the offence the applicant was 33 years of age. He gave evidence during the sentence proceedings wherein he agreed that the conversations in which he had engaged were inappropriate. He denied receiving any sexual stimulation from his conversations with "Jessica." He admitted that he had sent "Jessica" a link to a pornographic video believing that he was sending that link to a child so that she could watch pornography. 5 The applicant accepted that "Jessica" had told him she was 12 years old and he accepted that he understood her to be of that age. He admitted that he knew it was wrong to have a sexual conversation with a 12 year old girl. 6 The applicant was examined by Dr Westmore, a psychiatrist. The applicant apparently told Dr Westmore that he did not experience any sexual stimulation during the chat and had engaged in the communications out of "boredom." Dr Westmore concluded that he was unable to diagnose paedophilia and that accordingly the risks of reoffending were low. 7 The sentencing hearing took place over two days which were significantly separated in time. After receiving the evidence of Dr Westmore the sentencing judge expressed doubts about the credibility of the applicant's evidence that he had not received any sexual gratification from the communications and expressed the view that accordingly he had reservations in relation to the applicant's prospect of rehabilitation. 8 At the later hearing the applicant gave further evidence in which he admitted that he had received mental sexual stimulation during the communications with "Jessica", thought he had experienced an erection, but said he did not masturbate. 9 A further psychiatric report from Dr Roberts was tendered. He recorded that the applicant told him that during the communications with "Jessica" the applicant experienced sexual stimulation referred to as "mental" sexual stimulation, erection and arousal but had not masturbated. Dr Roberts concluded that the applicant's behaviour was consistent with a diagnosis of paedophilia and that he fulfilled all of the pre-requisites for that condition except that the communications did not extend over a six month period. Dr Roberts disagreed with Dr Westmore's conclusion that the applicant experienced no sexual stimulation during the communications. 10 The sentencing judge found the offending conduct to be "of a very serious nature." He identified the fact that the communications occurred over a period of almost four months. The recipient was believed to be a 12 year old child and the applicant received photographs consistent with this belief. His Honour concluded that the chat blogs demonstrated that the applicant took steps to make it easier to procure the recipient to engage in or submit to sexual activity with him. To this end the communications were expressly explicit and involved instructing the recipient how to masturbate. The applicant exposed the recipient to a pornographic video through an electronic link. 11 Finally, his Honour found that there was particular significance in the evidence that the applicant asked the recipient to meet with him and told her that if they met he might try to have sex with her. 12 The sentencing judge found that the applicant was a person with no relevant criminal history and was of good character. He lived with a female partner and was in full-time employment. He was well thought of in the community. 13 Before he was sentenced the applicant had commenced a program of treatment from Dr Allnutt to address his inappropriate sexual behaviour. His Honour ultimately concluded that provided the applicant maintained his treatment regime he had good prospects of rehabilitation. The appeal 14 The applicant confined his appeal to a submission that the sentence was manifestly excessive. His counsel accepted that a period of full-time custody was appropriate but submitted that the starting point for the sentence before allowing a discount for the plea of guilty, being almost four years, was manifestly excessive when regard is had to the nature of the offence committed "that is sexual activity was neither positively intended nor objectively possible in this case and the collective presence of subjective features in mitigation." 15 The applicant drew attention to a number of decisions both in New South Wales and other States which it was submitted were of assistance in establishing an appropriate sentence in the present case. The cases to which reference was made and the applicant's submissions with respect to them are set out below. Some previous decisions 16 In Western Australia v Collier (2007) 178 A Crim R 310 the Western Australian Court of Appeal considered a similar state provision; albeit one that involved an actual intention to procure that carried a similar maximum penalty, namely 10 years imprisonment. 17 Collier involved 3 offences contrary to s 204B(3)(b)(i) of the Criminal Code WA. The offender pleaded guilty. The facts were similar to the present case and involved a police officer posing as a twelve year old girl with explicit conversation about instruction with respect to masturbation. Collier was arrested when he attended a public park for the purpose of meeting the child. He acknowledged sexual activity was a real possibility. 18 At first instance, a 2 year suspended sentence was imposed. On appeal, the Court concluded that the sentences were manifestly inadequate. The Court considered the sentences imposed by Queensland courts in Kennings [2004] QCA 162; Campbell [2004] QCA 342; Burden [2005] QCA and Hays [2006] QCA each relating to similar conduct contrary to s 218A Criminal Code (Qld). The maximum penalty provided for that offence was five years imprisonment. 19 Allowing for the necessary reduction because of double jeopardy from a successful Crown appeal, the Court of Appeal imposed a head sentence of 18 months with a non-parole period of nine months. 20 The applicant submitted that allowing for the fact that the Court of Appeal would have imposed a longer sentence if presiding at first instance, the ultimate penalty imposed was well short of the sentence imposed in the subject case at first instance. 21 In R v Shepheard [2008] ACTSC 116 Refshauge J imposed a sentence of 2 years 9 months with an effective non-parole period of 9 months for a breach of s 474.27(1) of the Criminal Code 1995. The offender had entered a late plea of guilty. He had made almost 900 communications and there were multiple instances where pornography was transmitted. The offender communicated initially with an actual child victim before under cover police became involved. The offender had a prior criminal history. The sentencing judge relied upon the Victorian County Court decision of R v Gajjar [2008] VSCA 266 apparently under the impression that it was a grooming case (under 474.27) when in fact it was a procurement (s 474.26): see Gaiiar. 22 The applicant submitted that the objective criminality in Shepheard was higher than the present case, and favourable matters were not as significant. The applicant emphasised that the non-parole period imposed in Shepheard was half of that imposed on the applicant. The statistics in relation to s 474.27(1) 23 The JIRs statistics record the situation in respect of only four offenders who were dealt with under the relevant section from March 2005 to December 2008. Only one offender received a full time custodial sentence being 3 years with a non-parole period of two years. The number of total cases cited preclude any real weight being placed upon the statistics. District Court sentences 24 A number of District Court decisions were cited by both parties. David Wayne BUDD Sydney District Court 2 October 2007-Chartaris DCJ The case involved an offender who 'groomed' a 14-year old girl for sex online. However, the supposed teenager was in fact a 40-year old detective from the New South Wales police's child exploitation unit. The offender pleaded guilty at the first opportunity. He had no prior record. The offender was expected to lose his military career and over $1 million in pension entitlements. He would also lose his navy health care entitlements. The offender received a 18 month fully suspended sentence under section 20(i)(b) upon compliance with a recognizance for 3 years. David Francis PORTA Delaney DCJ-Parramatta DC-23 October 2007 The offender pleaded guilty to 7 online contacts with a police officer posing as a 14 year old girl. He had no prior convictions. He was sentenced to imprisonment for 1 year 9 months to be released after 9 months. The sentence to be served by way of periodic detention pending entering into a recognizance for a period of 3 years. Holmes Sydney District Court: Williams DCJ The offender pleaded guilty to one count contrary to s 474.27. He entered a plea of guilty to communication with a person believed to be an 11 year old, in fact a police officer. Images of child pornography were transmitted and the offender proposed a meeting in London for sex, including anal sex. He actually proposed further criminal acts upon any child borne from the union of the 11 year old and offender. He was sentenced to 2 years 9 months-NPP of 1 year 8 months Matters concerned with s 474.26 (Procurement) 25 The court was also referred to a number of decisions by appeal courts in relation to s 474.26. The offence crated by that section relates to conduct where the relevant communication takes place with the intention of procuring the recipient to engage in sexual activity. The maximum penalty for the offence is 15 years imprisonment. R v Poynder [2007] NSWCCA 157 This was a Crown appeal against a sentence imposed on an offender of 3 years imprisonment with an effective non-parole period of 1 year 3 months. The offender propositioned a real person who he believed to be 15 years of age. He was arrested attending a meeting with a second 'victim'. He believed this person to be 15 years of age but in fact she was an undercover police officer. The Crown appeal was dismissed. The Court found that the sentences were within the permissible range. Reference was made to the same group of Queensland cases which were cited by the Western Australian Court of Appeal in Collier . The Court said (at [88]): "It is true that the maximum penalty for an offence under Section 474.26 of the Criminal Code is much higher than was the maximum penalty for an offence under Section 218A(l)(a) of the Queensland Criminal Code. However, the sentence imposed on the respondent was higher than any of the sentences imposed on any Queensland offenders and, as regard the time required to be actually served in prison, much higher." Tector [2008] NSWCCA 151 Tector was convicted of three offences contrary to s 474.26, after a trial. The victim was a 12 year old boy. The offender sought initially to procure him in person from an internet cafe. He was successful in his sentence appeal, and was re-sentenced to 8 years imprisonment with a non-parole period of five years on each. The Court considered the Queensland cases cited in Poynder and the discussion in Collier. At [81] the Court noted that in each of the Queensland cases (with one exception) the offenders were youthful (with one exception), there was no real child involved, early pleas of guilty were entered, the offenders had no criminal antecedents and the risk of recidivism was considered to be low. The Court distinguished the Queensland cases. R v Gajjar [2008] VSCA 268 In this case the offender was sentenced to imprisonment for 2 years 6 months with a non-parole period of 8 months for one offence contrary to s 474.26. The offender pleaded guilty. The communication was with a person who the offender believed to be a child of 14 years. The person was actually an undercover police officer. He was arrested at a "meeting" which he had arranged. He had no previous convictions. The court accepted that the relevant principles were those discussed in Collier. DPP (Cth) v Hizhnikov [2008] VSCA 269 (Court of Appeal) In this case the Crown appealed a 22 month sentence that was wholly suspended. The offender was arrested when he attended a meeting at a railway station with a person he believed to be a child of 14 years who in fact was a police officer. The offender was a 25 year old male with no prior convictions. The judgment of Steytler P in Collier was again referred to with approval. The Court concluded (at [24]): "An offence of this kind would ordinarily though not invariably, result in a term of immediate imprisonment. The fact that an offender was a previous good character did not mean that a term of immediate imprisonment should not be imposed". 26 However, because it was a Crown appeal the court exercised its discretion and determined not to intervene. 27 Although the Court of Appeal did not stipulate what may have been the appropriate period in custody for the specific 474.26 offence, it would seem that a term of months, rather than years, was contemplated. Respondent's submissions 28 The respondent emphasised that for offences of this type general deterrence was of particular significance R v El Karhani (1990) 21 NSWLR 370; R v Paull (1990) 20 NSWLR 427. It was submitted that it is plain from the Second Reading speech that the legislature intended when introducing the relevant provision that it should be understood that the offence was serious and recognised that it was difficult to detect and prosecute. Because it involved communications of a sexual nature with young children its potential to cause significant damage to the victims could not be underestimated. 29 The respondent rejected the applicant's submission that any suggestion of a meeting with "Jessica" was "fleeting". The respondent emphasised that the evidence indicated that the applicant suggested meeting with "Jessica" on at least five occasions which included suggestions of going shopping together, meeting in Melbourne, joining him to have sex, meeting for a "raunchy date" and meeting because he wanted to try and have sex with her. 30 The respondent submitted that it was irrelevant that the applicant formed no positive intention to meet for sexual activity. The essential element of the offence was an intention of "making it easy to procure the recipient to engage in sexual activity." The offence did not require an actual intention to meet or engage in sexual activity. Section 474.26 which carries a maximum penalty of 15 years imprisonment relates to a person who communicates "with the intention of procuring the recipient to engage in or submit to, sexual activity with another person." 31 The respondent emphasised that it was irrelevant to the offence that sexual activity may have been impossible and s 474.28(9) makes it irrelevant that the recipient of the communications was a fictitious person. 32 Apart from the cases referred to by the applicant the respondent identified further decisions of which the following are in my view of significance: 33 In R v O'Shana (ACTSC Refshauge J, 1 August 2008, unreported) the offender was convicted of a number of offences, but in particular of two counts contrary to s 474.27(1) of the Criminal Code 1995 (Counts 1-2). The offender pleaded guilty, had no prior criminal record and was a person of otherwise good character. The facts giving rise to counts 1 and 2 involved the offender using an Internet messaging service to send sexually explicit content to a 13 and 14 year old female on different occasions. The offender was sentenced to a head sentence of 3 years and 3 months for count 1, and for the count 2 offence, a head sentence of 3 years. 34 In R v Bozinovski (NSWDC 4 June 2009 unreported) the offender was convicted of an offence contrary to s 427.27(1). The offender like the appellant in the present case was a person of prior good character and pleaded guilty. Bozinovski was sentenced to a term of imprisonment for 2 years and 6 months, to be released on a recognizance order after serving 1 year and 6 months. 35 In R v Lindsay (NSWDC 16 December 2009 unreported) the offender was convicted of a breach of s 474.26(1) of the Crimes Code 1995. The offender engaged in online communications with an undercover operative, who he believed was a 14 year old girl. The offender spoke of sexually explicit acts including masturbation. He pleaded guilty. Lindsay was sentenced to a term of imprisonment of 2 years and 6 months, with a recognisance release order after serving 1 year and 3 months. 36 In R v Singh (NSWDC 19 May 2009 unreported) the offender was sentenced to 4 years imprisonment with a non-parole period of 2 years for committing an offence contrary to s 474.26(1). The offender had engaged in extensive online chat on 3 occasions with an undercover operative believing the person was a young girl of 14 years of age. The offender pleaded not guilty. Determination 37 In my judgment the applicant's submission should be rejected. As was made plain by the Court of Appeal in Western Australian in Collier the offence is no less reprehensible when the offender is communicating with a fictitious person who they believe to be real than when communicating with a real person. The legislature provided for the offence to be committed in this manner in order to enhance their prospects of detection and accordingly deter offenders and minimise the use of the internet for the sexual corruption of children. It was carefully designed by the legislature so that law enforcement authorities could identify persons who set about using the internet for this purpose. The nature of the offence is such that the creation of fictitious identities and the involvement of police in communicating with offenders is necessary. Regrettably the reality is that many actual victims may not report the internet exchanges with an offender. Their own immaturity may result in a failure to appreciate the consequences of the behaviour induced by an offender. They may not report out of fear of the consequences either from an offender or from parental discipline. 38 Consideration of the sentences imposed for these offences reveals, as is inevitable a variation in sentences depending upon the circumstances of particular offenders and matters particular to their offence. However, there is nothing in any of the sentences which have previously been imposed which suggest to my mind that the sentence received by the applicant was excessive. To my mind the sentencing judge's observation of the serious nature of the offending was appropriate. I appreciate that the applicant received a discount for his guilty plea but nevertheless in my judgment the sentence which was imposed was within his Honour's discretion. 39 Although I would grant leave to appeal in my judgment the appeal should be dismissed. 40 LATHAM J: I agree with McClellan CJ at CL. 41 PRICE J: I agree with McClellan CJ at CL. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.